Commentary on the interrelationships of the political, economic, and social spheres.

Wednesday, June 20, 2012

Executive Disorder

There seems to be some misunderstanding about what an executive order is. In short, it is an order by an executive to carry out (that is, execute) the duties of that role. It doesn’t sound that difficult to understand.

In the federal government, with powers carefully separated, an executive doesn’t make law, but carries out the laws set forth by acts of the legislative branch. So this week when President Obama made an executive order to offer some sort of legal status to grown children of illegal aliens, that wasn’t accurately an executive order at all; that was a law change by fiat—not a power we have granted to the executive branch.

Back in the early days of the country, one of the first orders by the executive, President George Washington, was to place an order for a set of dishes to be used at state diplomatic dinners. Diplomatic relations with foreign dignitaries was a role required of the executive branch, so it seemed reasonable. And when the funding for the order came before the legislature, which had power over the budget, Congress granted funding for the request.

Over the decades, executive orders were mostly policy statements to the various specific departments directed by the executive. These aren’t laws. They aren’t even regulations. They are policies and procedures that are intended to meet the objectives of the law.

But over the decades, particularly recent decades, Presidents have pushed the boundaries. Back in President Truman’s day, the Supreme Court pushed back. Truman tried to put all steel mills in the US under federal control. The Court saw that as making law and disallowed it. Which put future presidents on warning, and since then they have mostly cited the law they are supporting when making executive orders.

Executive orders have been used to fight wars without the formal declaration of war, but in those instances Congress has followed up with authorization. It was seen mainly as a timing issue of immediate military needs.

Problems began to mount in the last few decades when the executive branch granted power to regulatory agencies, with intrusive legal authority that never passed through Congress. One of the “causes” of executive order overuse has been contradictory laws and regulations. The US legal code is pretty convoluted—even incomprehensible to the non-legally trained public. And that leaves a lot up to interpretation. Executive orders have been used to direct policy during a particular administration, in a way saying, “While I’m in office, we’re going to interpret the law this way.” Or maybe just saying, “We’re going to focus enforcement here with limited time and resources.”

Rather than the executive branch interpreting and then picking enforcement priorities, a better solution would be to insist on clarity in the code, but we’re not likely to get that in the short run. Real arguments come when the president’s policy simply disagrees with the law, so he uses executive orders to circumvent the law or simply ignore it.

An example would be Obama’s ending the Mexico City Policy, thus authorizing taxpayer funds to be used for grants to international groups providing abortion services. That was done his first week in office. A couple of months later he removed restrictions on taxpayer funding forembryonic stem cell research (research that, by the way, continues to produce zero successes, while non-embryonic stem-cell research continues to make headway; it’s about wanting to sacrifice embryos more than it is about advancing science.)

In the current administration “executive orders” are simply a maneuver to exert power when Congress hasn’t seen fit to grant it. There’s even a catchy name for this “program”: “We Can’t Wait.” It combines executive orders, regulatory rulemaking, and recess appointments to avoid needing Congressional approval before doing whatever Obama wants to do. Note that all the czars appointed by the president are extra-constitutional, so none of the regulations put forth by any agency headed by a czar should be given authoritative weigt. And pretending that Congress is in recess during a weekend shows “he won’t wait,” but it hardly illustrates Congress as the roadblock he claims.

Shutting down an executive order, at least in this day and age, is difficult. Congress can overrule, but requires a supermajority. Even cutting off funding is more difficult than it ought to be. And a Supreme Court ruling requires a lawsuit by someone who can show damage from the action, and time for the issue to work its way up to the Supreme Court.

So Obama orders at will, with a “what are you going to do about it?” arrogance. The quickest, simplest approach is to vote the president out of office, and toss out all his executive orders along with him.

Which means, executive orders are arbitrary and temporary—bad things when you’re dealing with a society that functions by the rule of law. As Thomas Sowell explains this week, anyone who comes forward and claims their parents are illegal aliens risks making that known when the Obama rule could disappear within the year. And who is going to hire a newly identified suddenly legal alien, putting in the training and investment needed for a new employee, if there’s a risk the next year of being charged with hiring illegals?

If the change had been through congressional debate, those questions might have been answered. The arbitrariness would have been eliminated before a rule became law. There are reasons to wait for Congress. In general, the less Congress does, the better off we are.

But Obama “can’t wait,” or maybe can’t be bothered with details like the Constitution. He prefers being an autocrat. This executive does a lot of ordering, but what he creates is disorder.